IRVING R. KAUFMAN, Chief Judge:
In this case, in which we are called upon to interpret Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Learned Hand's admonition is particularly appropriate:
We believe that the district court failed to attach sufficient weight to the overriding purpose of the Act.
Title VII is a statute "rife with procedural requirements which are sufficiently labyrinthine to baffle the most experienced lawyer," Egelston v. State University College at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976), not to mention a layman such as the appellant Ralph H. Silver. On August 29, 1975, Silver was discharged from his position as a senior marketing economist with appellee Mohasco Corporation. During his thirteen-month tenure, Silver, who is of the Jewish faith, came to believe he was the target of harassment by Mohasco executives because of his religious beliefs.
Sometime after his discharge, Silver concluded that Mohasco's treatment of him was part of a carefully conceived plan under which Jews and other minorities were hired, harassed, and fired in a systematic fashion. This scheme, Silver believed, was designed to erect a facade of equal employment opportunity at Mohasco.
Thus, on June 15, 1976, some 291 days after his discharge, Silver wrote to the Buffalo office of the Equal Employment Opportunity Commission (EEOC). In his letter, Silver alleged that he had been hired and subsequently discharged because of his religion, and detailed the substance of his charge against Mohasco. Silver concluded by characterizing it as a "rough, incomplete and hastily drafted complaint."
Upon receiving Silver's communication, the EEOC set into motion the complex procedural machine established by Title VII. The Commission immediately forwarded the letter to the New York State Division of Human Rights (NYSDHR). Under § 706(c) of the statute, that agency must be given sixty days to process a charge before the EEOC may act.
On August 12, Silver complied with an NYSDHR request that he file a formal complaint.
At this point the proceedings shifted back to the EEOC. That agency, which had deferred any investigation of Silver's claim until NYSDHR issued its findings, adopted them as its own on August 24, 1977. Finally, in compliance with another procedural mandate of Title VII, the EEOC issued a "right to sue" letter to Silver, enabling him to pursue his charges in federal district court.
Silver, the judge held, had failed to file his charge with the EEOC within 300 days of his discharge, as required by § 706(e) of Title VII.
The resolution of this appeal hinges on determination of the date when a charge is considered "filed" with the EEOC. This superficially simple issue is complicated by the plethora of overlapping procedural requirements that pervade Title VII. Nonetheless, we believe that much of this complexity is overcome by fidelity to the fundamental policies embodied in Title VII. Indeed, our approach accords with the relevant
The crucial importance of "filing" under Title VII stems from the mandate of § 706(e) that, when a state has created an agency to hear employment discrimination claims, a charge must be "filed" with the EEOC within 300 days`of the alleged discrimination.
Confronted with these two provisions, the able district court judge read § 706(c) literally. He reasoned that even when a charge is received by the EEOC well within 300 days of the alleged discrimination, it cannot be considered "filed" with that office until sixty days after referral to the state agency. Thus, according to Judge Foley, Silver's charge, albeit received by the EEOC 291 days after his discharge, was not "filed" before August 14, 1976, 352 days subsequent to the termination of his employment.
The district court decision would, therefore, require a Title VII complainant to file his charge with the state agency within 240 days of discharge or forfeit the opportunity to bring his complaint before the EEOC. We are of the view, however, that an informed reading of Title VII, consistent with its purpose, requires us to conclude that a charge is "filed" for purposes of § 706(e) when received, and "filed" as required by § 706(c) when the state deferral period ends.
In interpreting the filing provisions of Title VII, our lodestar must be the statute's fundamental purpose. In view of the strong federal policy in ensuring that employment discrimination is redressed, this court has consistently eschewed rigid construction of Title VII's procedural mandates. See Egelston, supra, 535 F.2d at 753-55; accord, Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975); Voutsis v. Union Carbide Corp., 452 F.2d 889, 892 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972). Accordingly, we have resisted any temptation to require technical precision of Title VII plaintiffs, who often proceed without counsel. See Oscar Mayer & Co. v. Evans, ___ U.S. ___, ___, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (stressing the remedial purposes of employment discrimination statutes).
Thus, it is the Supreme Court's decision in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), that best illuminates the path we travel in arriving at our decision in this case. In Love, the Supreme
In our view, the clear import of Love is that a charge held, like Silver's, in "suspended animation," is "filed" under § 706(e) when the EEOC first receives it, and not when the sixty-day period ends.
This interpretation not only serves the concern of Title VII for individual rights, but also comports with the overarching procedural scheme embodied in the statute. There is little doubt that § 706(c) is designed solely to provide state agencies with an opportunity, before the federal agency intervenes, to resolve disputes between employer and employee. Oscar Mayer & Co., supra, ___ U.S. at ___, 99 S.Ct. 2066; accord, Love, supra, 404 U.S. at 526, 92 S.Ct. 616; Voutsis, supra, 452 F.2d at 892. Viewed in this light, it is clear that, because the charge is referred to the local agency after it is "filed" with the EEOC, appropriate respect is accorded the states. Moreover, in no sense can Title VII defendants be said to suffer prejudice or surprise under our reading of § 706(c), for the interpretation we have adopted does not countenance the filing of stale claims. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 372, 97 S.Ct. 2447, 53 L.Ed.2d 402
The views of three of the four circuits that have considered the precise question before us are substantially in accord with our own. See Vigil v. American Telephone & Telegraph Co., 455 F.2d 1222 (10th Cir. 1972); Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir. 1972); Richard v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972).
Only the Seventh Circuit has held otherwise. In Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972), then-judge Stevens relied on a literal reading of the statute to prevent the EEOC from "filing" a charge until sixty days after its "receipt."
We note also that the legislative history of Title VII is not silent on the question before us. Indeed, before the statute was amended in 1972,
Finally, in cases arising under Title VII, we must accord "considerable deference" to the interpretations of the EEOC, the agency charged with administration of the statute. Egelston, supra, 535 F.2d at 755 n.4; accord, Oscar Mayer & Co., supra, ___ U.S. at ___, 99 S.Ct. 2066. The EEOC has consistently maintained that a charge is "filed" on the day it is received by the federal agency, without regard to the intervening deferral period. See 29 C.F.R. § 1601.12(b)(1)(v)(A) (1977).
We turn now to the second issue raised on this appeal — whether the district court can properly consider Silver's allegations of "blacklisting." Judge Foley determined that the scope of the EEOC's inquiry was of necessity limited to the period of Silver's employment, and that he therefore lacked power to adjudicate charges of postemployment blacklisting. We believe, however, that Title VII claimants should not be held to the precision of a code pleader.
Charges of post-employment blacklisting fall within the broad remedial scope of Title VII. Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978). And to furnish a remedy against discrimination in employment, no matter what specific form the invidious practice takes, we have embraced the same flexible approach in interpreting Title VII complaints that we have adopted in construing the statute's filing requirements. See, e.g., Weise, supra, 522 F.2d at 413;
We look not merely to the four corners of the often inarticulately framed charge, but take into account the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Smith v. American President Lines, 571 F.2d 102, 107 n. 10 (2d Cir. 1978); accord, Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971). Accordingly, we have previously construed Title VII charges to include allegations of "continuing discrimination" that occur "even after" the complaint is filed. Noble, supra, 535 F.2d at 758; accord, Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Ortega v. Construction & General Laborers' Union, 396 F.Supp. 976, 980 (D.Conn. 1975).
Under the American President Lines standard, Silver's allegations of blacklisting
Reversed and remanded.
MESKILL, Circuit Judge, concurring in part and dissenting in part:
When the rights of litigants depend on the interpretation of legislation, whatever canon of statutory construction a party may fire at the opponent an equally authoritative but directly contrary shot will undoubtedly be fired in reply.
The purposes behind these provisions are every bit as clear as their literal meanings. In Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), a unanimous Supreme Court explicitly stated that the purpose of Title VII's deferral provision is "to give state agencies a prior opportunity to consider discrimination complaints" while the purpose of the limitations provision is "to ensure expedition in the filing and handling of those complaints." Not surprisingly, the scheme enacted by Congress effectuates these two different goals by imposing two different requirements on those who seek to invoke the remedial provisions of Title VII. Thus, a charge must not be filed with the EEOC until after the expiration of the mandatory deferral period (or termination of state proceedings), yet a charge must be filed with the EEOC within 300 days of an alleged unlawful employment practice. As a practical matter, a person who complains to the EEOC within 180 days of an alleged illegal employment practice can be sure of neither tripping on the deferral threshold nor bumping against the limitations ceiling. Regardless of whether the relevant state has created an agency to which deferral is necessary, and regardless of how long any such agency has been in existence, and regardless of how quickly any such deferral agency terminates its proceedings, the complaint will be timely.
The majority's refusal to read the statute as written interferes significantly with the congressional decision to require prompt action on the part of Title VII plaintiffs. The legislative history of the predecessor of § 706(e) makes clear that the section contains two different limitations periods not to reward persons in deferral states, but rather to ensure that they are not penalized for having to comply with the statute's deferral requirements.
As originally enacted in 1964, Title VII required extraordinary diligence on the part of complainants. The original limitations provision (then labelled section 706(d)), like present section 706(e), contained two different limitations periods. The statute provided for a basic 90 days filing period and a 210 day period — the latter to apply to cases where state procedures were followed. Looking at the legislative history of this original limitations section, in Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972), Justice (then Judge) Stevens concluded:
459 F.2d at 825 n. 35. Before passage of the 1964 legislation, Senator Dirksen clearly explained the relationship of the proposed deferral section and the proposed limitations section:
Id., quoting the EEOC's Legislative History of Titles VII and XI of Civil Rights Act of 1964 at 3018 (emphasis added). The equally unambiguous remarks of Senator Humphrey make clear that the 210 day limitations period for deferral cases was intended to protect a complainant against losing the right to file with the EEOC "simply because the 90-day period for filing with the Federal Commission has elapsed while he seeks to pursue State remedies." Id., quoting Legislative History, supra, at 3006.
When Title VII was amended in 1972, both limitations periods were lengthened. New section 706(e) specifies a base period of 180 days and a period of 300 days applicable to complainants subject to the statute's deferral requirements. The differential between the two remained the same: an aggrieved individual in a deferral state still has an extra 120 days in which to file with the EEOC so that compliance with the deferral requirements of the act can be achieved. Thus the limitations section as amended still ensure that no penalty is exacted from those in deferral states. No more diligence is required of those complainants than is required of their counterparts in states lacking deferral agencies.
Like the cases on which it relies, the majority opinion overlooks the legislative history which clearly establishes that the statute is to be applied as it reads. See Richard v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972); Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir. 1972); and Vigil v. American Telephone and Telegraph Co., 455 F.2d 1222 (10th Cir. 1972). The majority offers nothing to support the assumption, necessarily implicit in today's decision, that Congress intended to give complainants in deferral states a 120 day bonus and to excuse them from exercising roughly the same degree of diligence required of persons in non-deferral states. It should be noted that in 1975, the Eighth Circuit, sitting en banc, concluded that an examination of the legislative history excerpted above necessitated a rethinking of Richard v. McDonnell Douglas Corp., supra, which had attempted to interpret Title VII's filing requirements without reference to this history.
Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1231-33 (8th Cir. 1975) (footnote and citation omitted).
The only legislative history on which the majority relies is an excerpt from a report of the House-Senate Conference Committee on the 1972 amendments, which endorsed the decision of the Tenth Circuit in Vigil. However, the fact remains that in 1972 Congress chose to leave the design and wording of the limitations subsection intact; the only changes made were a renumbering of the section and the lengthening of the two limitations periods contained therein. In my view, since the intent of the enacting Congress is unambiguous and the amending Congress chose to retain the original scheme, the evidence is insufficient to permit the inference that the later Congress intended to accomplish wholly new ends by leaving intact the scheme constructed by an earlier Congress which had different purposes in mind. See Oscar Mayer & Co. v. Evans, ___ U.S. ___, ___-___, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979).
Finding little support in the language of the statute or in its legislative history, today's decision apparently rests on the widely accepted and reasonable principle that as a remedial statute often invoked by laypersons, Title VII should be interpreted flexibly so as to eliminate procedural barriers that serve no purpose. However this principle cannot be taken to authorize the judicial remodelling of all provisions of a remedial statute that place strict limitations on the access road to the newly-created remedy. For example, in Love v. Pullman Co., supra, the Supreme Court made three crucial observations in approving the EEOC practice of (1) making referrals to state agencies on behalf of complainants in deferral states and (2) delaying formal filing of a charge until expiration of the deferral period or termination of state proceedings. First, the Court noted that the EEOC practice interfered with neither the policy of deferral to state procedures nor the goal of expedition in the handling of claims. Second, the Court noted that no legitimate interest of defendants was prejudiced. Finally, the Court noted that nothing in Title VII suggests that state proceedings may not be initiated by the EEOC acting on behalf of a complainant or that the EEOC may not delay the formal filing of a complaint until termination of state proceedings. It was these determinations that led the Court to conclude that requiring a second filing by a complainant "would serve no purpose other than the creation of an additional procedural technicality." 404 U.S. at 526, 92 S.Ct. at 619 (footnote omitted).
The EEOC practice in the instant case does not meet these tests. First, permitting a charge to be filed with the EEOC at any time within 300 days regardless of whether the extra time has been used as intended, is to sacrifice the diligence Congress sought to require of Title VII complainants. Although the majority assures us that the interpretation adopted today "does not countenance the filing of stale claims," I respectfully suggest that when Congress bestows new rights and remedies on some persons and imposes new obligations and liabilities on others, its judgment regarding how and when claims are to be asserted and preserved ought not to be lightly disregarded. "Even though a statute of limitations may `permit a rogue to escape,' the legislative commands must be respected." Moore v. Sunbeam Corp., supra, 459 F.2d at 826 n. 37, citing Toussie v. United States, 397 U.S. 112, 123-24, 90 S.Ct. 858, 23 L.Ed.2d 156 (1970). Second, to the extent that the repose granted by Congress to potential defendants has been delayed, they have been adversely affected by the EEOC practice. Finally, the language of the statute indicates that the result reached today was simply not intended by the authors of Title VII. Deference to agency interpretation is appropriate only when consistent with deference to the intent of Congress.
Referring to the many "procedural requirements and time limitations that must
Weise v. Syracuse University, 522 F.2d 397, 411, 412 (2d Cir. 1975) (citations omitted).
NYSDHR is the state agency established under N.Y.Exec. Law § 293 (McKinney 1972) to consider employment discrimination claims.
The district judge granted both motions in a single opinion filed on October 17, 1978. As to the individual defendants, we agree with Judge Foley that, because they were not notified of any EEOC investigation of their individual conduct, these defendants could not be included in Silver's complaint. See Travers v. Corning Glass Works, 76 F.R.D. 431 (S.D.N.Y. 1977) (Weinfeld, J.).
42 U.S.C. § 2000e-5(e) [hereinafter cited as § 706(e)].
Equally "anomalous procedural modes" however, arise under the district court judge's interpretation, as he himself recognized. Silver v. Mohasco Corp., No. 77-CV-472, slip op. at 12 (N.D.N.Y. Oct. 17, 1978). Specifically, if NYSDHR had completed its investigation of Silver's charge within nine days, it would have been deemed "filed" with the EEOC on the 300th day and § 706(e) would have been satisfied. Because the state agency proceeding exceeded nine days, however, Silver was denied access to a federal forum. Thus, a complainant's fate would rest entirely with the state agency, a result specifically at odds with § 706(c)'s mandate that a state's procedural requirements "cannot foreclose federal relief." Oscar Mayer & Co., supra, ___ U.S. at ___, 99 S.Ct. 2066. Where, as here, both constructions lead to illogical treatment of similarly situated complainants, we prefer the interpretation that best vindicates the statutory purpose.
S.Rep. No. 92-415, 92d Cong., 1st Sess. 36 (1971) (emphasis added).
In cases where the document is submitted to the Commission more than 180 days from the date of the alleged violation but within the period of limitation of the particular 706 Agency, the case shall be deferred pursuant to the procedures set forth above: Provided, however, That unless the Commission is earlier notified of the termination of the State or local proceedings, the Commission will consider the charge to be filed with the Commission on the 300th day following the alleged discrimination and will commence processing the case. Where the State or local agency terminates its proceedings prior to the 300th day following the alleged act of discrimination, without notification to the Commission of such termination, the Commission will consider the charge to be filed with the Commission on the date the person making the charge was notified of the termination.
The EEOC has consistently followed this administrative policy throughout the past ten years. It has filed a brief amicus curiae in this case, maintaining the same position.
I also agree with part III of the majority opinion which states that the scope of the EEOC investigation which could reasonably have been expected to grow out of Silver's charge was sufficiently broad to encompass his allegation of blacklisting. EEOC regulations provide for the amendment of a charge to include additional unlawful practices "related to or growing out of the subject matter of the original charge." See 29 C.F.R. § 1601.12(b) (1978); see also 29 C.F.R. § 1601.11(b) (1976). In August of 1976, two months after first contacting the EEOC, Silver sent to the district director a letter clearly charging Mohasco with circulating bad references. I agree with the position taken by amicus EEOC on appeal; whether viewed as an amendment to the earlier charge or as a new charge, this letter was sufficient to notify the EEOC that an investigation of blacklisting was called for. The EEOC's failure to investigate this aspect of Silver's complaint should not foreclose his access to a court hearing. To earn the right to sue, a Title VII complainant need only seek, in an appropriate manner, administrative relief. Failure to obtain relief at the administrative level is what prompts, rather than forecloses, the search for judicial relief.
Therefore, I would remand the case to the district court for a hearing on the blacklisting claims, which appear from the record to have been promptly filed with the EEOC. In addition, I would instruct the district court to reconsider, in light of our disposition on the blacklisting issue, whether there has been any assertion of a continuous pattern of discrimination that would work to save Silver's charge of discriminatory discharge despite what I view as his failure to make a timely filing with the EEOC as to the discharge complaint. See Smith v. American President Lines, Ltd., 571 F.2d 102, 105-106 & nn. 5-6 (2d Cir. 1978).
Weise v. Syracuse University, 522 F.2d 397, 411 (2d Cir. 1975) (footnote and citation omitted) (emphasis added).